Citation Nr: 1431469
Decision Date: 07/14/14 Archive Date: 07/22/14
DOCKET NO. 09-04 033 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia
THE ISSUE
Entitlement to a compensable rating on an extraschedular basis for service-connected bilateral hearing loss.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
Michael Sanford, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1974 to September 1978.
This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.
This matter was before the Board in December 2011, when it denied the Veteran's claim of a compensable rating for bilateral hearing loss on a schedular basis. As will be discussed in greater detail below, the Board remanded the issue of entitlement to an extraschedular rating for bilateral hearing loss and a review of the claims file reveals substantial compliance with the Board's December 2011 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Thus, the Board may proceed with a decision at this time.
FINDING OF FACT
The competent and credible evidence of record, including a September 2012 opinion by the Director of VA's Compensation and Pension Service, indicates that the Veteran's bilateral hearing loss does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.
CONCLUSION OF LAW
The criteria for an extraschedular rating for bilateral hearing loss have not been met. 38 C.F.R. § 3.321(b)(1) (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103 , 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102 , 3.159, 3.326(a) (2011). For the reasons to be discussed below, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006).
VA has made all reasonable efforts to assist the Veteran in the development of his claims, has notified him of the information and evidence necessary to substantiate the claims, and has fully disclosed VA's duties to assist him. In a November 2007 letter, the Veteran was notified of the information and evidence needed to substantiate and complete the claim on appeal. Further, pursuant to the Board's remand, the Veteran was provided with a notice letter dated December 2011, which detailed the criteria for extraschedular ratings.
The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical records. Further, pursuant to the Board's December 2011 remand, in the December 2011 notice letter, the Veteran was advised of his right to submit additional evidence in support of his claim. The Veteran did not respond to that letter. He has also been afforded VA medical examinations on several occasions, most recently in January 2011. The Board notes that the VA examination report contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal. Additionally, the Veteran's claim was forwarded to the Director, VA Compensation and Pension Service, in July 2012 for extraschedular consideration. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received.
Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted.
Analysis
As noted in the introduction, the Board has already denied a compensable rating on a schedular basis for the Veteran's service-connected bilateral hearing loss; however, the December 2011 decision and remand ordered the RO to refer the case to the Director, Compensation and Pension (C&P) Service, for extraschedular consideration under 38 C.F.R. § 3.321. Thus, the issue of entitlement to an extraschedular rating for bilateral hearing loss is before the Board.
Pursuant to 38 C.F.R. § 3.321(b)(1), ratings shall be based as far as practicable on the average impairment of earning capacity with the additional proviso that the Secretary shall from time to time readjust the schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Director of Compensation and Pension Service, upon field examination submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. The governing norm in these exceptional cases is as follows: A finding that the case presents such an exceptional or unusual disability picture with such factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.
Service connection was established for bilateral hearing loss in a July 2003 rating decision, which assigned an initial noncompensable disability rating.
In December 2007, the Veteran submitted a statement regarding the occupational effects of his service-connected bilateral hearing loss. He noted that he was unable to wear his hearing aids while working as a logger. As a result, he was fired from that position. The Veteran also detailed his work as a meat cutter and a spray painter. The Veteran also stated that because he was unable to use hearing aids at those jobs, he was also terminated from both positions.
The Veteran was afforded a VA audiological examination in January 2011. There, speech recognition performance in both ears was described as excellent. The examiner noted no significant effects on the Veteran's occupation.
As discussed above, the matter came before the Board in December 2011. At that time, the Board denied the Veteran's claim for an increased rating on a schedular basis and remanded the issue of entitlement to an increased evaluation on an extraschedular basis.
In December 2011, the Veteran was asked to provide details regarding his employment history and the effects of his bilateral hearing loss on his occupation. To date, the Veteran has provided no response to that request.
In July 2012, the agency of original jurisdiction (AOJ) referred the extraschedular issue to the Director, VA Compensation and Pension Service, for consideration.
By a September 2012 opinion, the Director opined that entitlement to a compensable extraschedular rating was not warranted. The Director noted that the Veteran stated that he had been terminated from several jobs due to his use of hearing aids. The Director, however, determined that the evidence of record failed to show that the Veteran's bilateral hearing loss presented an exceptional disability picture that would render impractical the application of the schedular criteria for bilateral hearing loss. In doing so, the Director referenced the results of the January 2011 VA examination.
The Board finds that the Director's opinion is supported by the overall evidence. The Director cited to the relevant regulatory provisions and explained his rationale for concluding that an extraschedular evaluation was not warranted. There is no evidence that the Veteran's bilateral hearing loss is exceptional or unusual. Indeed, the effects of the Veteran's bilateral hearing loss are contemplated by the schedular criteria-namely decreased hearing ability. Further, the Veteran has provided no further information regarding the occupational effects of his bilateral hearing loss. To the extent that the Veteran alleges that his hearing loss affects his employment, the Board finds no corroborating evidence of this allegation and finds the Veteran's allegation not credible. Thus, a compensable extraschedular rating for bilateral hearing loss under 38 C.F.R. § 3.321(b)(1) is not warranted.
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ORDER
Entitlement to an increased rating for service-connected bilateral hearing loss, on an extraschedular basis, is denied.
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James L. March
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs